Fridays with Rogers Partners

At our weekly meeting, Sarah Sevier discussed the recent decision of the Ontario Court of Appeal (“ONCA”) in Passmore v. Hamilton (City), 2024 ONCA 825. The ONCA granted the appeal, overturning a summary judgment motion, and remitted the matter back to the Superior Court of Justice for trial. The case centers on the motion judge’s failure to address relevant considerations for partial summary judgment.

FACTS

The plaintiff was a passenger on a Hamilton Street Railway (“HSR”) bus in July 2020. The plaintiff alleges that the driver, Mr. Michael Plunkett suddenly slammed on the brakes, causing her to fall from her seat and injure herself.

The plaintiff named Mr. Plunkett, the City of Hamilton (the “City”) and HSR as defendants. A joint statement of defence was filed, along with a jury notice.

In July of 2023, a pre-trial conference was held before Justice Sheard, during which the defendants indicated that the City was improperly named as a defendant. Justice Sheard directed the City to bring a motion to dismiss the claim against it and if not done so within 60 days or unsuccessful on the motion, the plaintiff could strike the jury notice.

A motion for summary judgment was subsequently brought by the City of Hamilton.

The motion judge granted summary judgment, stating that the purpose of the motion was essentially to “determine whether the case will be decided by a jury or judge alone.” The judge also indicated that a finding of liability against the City would be of “academic interest only” despite potentially valid arguments presented by the plaintiff.

LAW & ANALYSIS

The ONCA concluded that the motion judge erred in granting summary judgment. Although the motion judge referred to the motion as a Rule 20 motion, no reference was made to the fact that, in moving for the removal of one defendant, the motion was only for partial summary judgment. As a result, the motion failed to consider the well-established principle that partial summary judgment is only appropriate in rare circumstances.

The ONCA specifically noted that the motion judge should have referred to the case of Malik v Attia, 2020 ONCA 787, in which the court set out three considerations that support granting partial summary judgment:

1. The determination of the case in several parts will prove cheaper for the parties;
2. Partial summary judgment will get the parties’ case in and out of the court system more quickly; and
3. Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

Counsel for the respondent made a series of submissions in attempt to demonstrate that the motion judge made the necessary considerations in granting summary judgment, all of which were dismissed by the ONCA.

First, counsel for the respondent argued that the motion judge referred to the fact that the motion was made under Rule 20 and properly determined that there was no “genuine issue requiring a trial” as required by the test for summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7. The ONCA stated that these arguments must fail because the motion judge did not consider Malik and the specific requirements for granting partial summary judgment, despite addressing the test for summary judgement.

Second, counsel for the respondent argued that the motion judge found there would be no prejudice to the plaintiff if the motion were granted, and that the decision would help focus the issues at trial and reduce costs. However, the ONCA found “no merit” in this submission, as the motion judge had not considered Malik. The court also noted it was inappropriate for counsel to attempt to “fill the void with their own analysis of the Malik considerations” when seeking to uphold the motion judge’s decision. 

In addition to rejecting these submissions, the court noted that because counsel did not raise the issue until the pre-trial conference, granting the motion would not have resulted in any time or cost efficiencies, given the litigation steps already taken. Moreover, since the allegations involved joint liability against both HSR and the City, the trial would require adjudicating the same issue based on the same evidence. As a result, there was no added burden in keeping the City in the action.

CONCLUSION & TAKEAWAYS

The ONCA concluded that this was not a “rare case” where partial summary judgment would be warranted.

This decision is significant in the ongoing debate about whether partial summary judgment is an available option for defendants. While the motion judge failed to consider relevant factors, the case underscores the increasing difficulty—particularly since the Malik decision—for defendants to meet the stringent criteria required to obtain partial summary judgment.

The relative scarcity of decisions granting partial summary judgment is noteworthy, in light of the prevailing argument that it can significantly improve access to justice. Specifically, proponents contend that, when used appropriately, partial summary judgment can be a proportionate, timely, and cost-effective solution, helping to streamline litigation by narrowing the issues and reducing unnecessary complexity.

It will be interesting to see whether this trend of limiting partial summary judgment continues, or if further changes will be made to the regime to make it more accessible or applicable in future cases.